District Judge Eugene Tay:
Background
The Plaintiff ex-wife and the Defendant ex-husband were married in United States of America (“USA”) on or about xxx December 1998. The Plaintiff filed for divorce against the Defendant on or about 28 October 2011. Interim Judgment (“IJ”) was granted on 3 July 2012. Clause 3 of the IJ contained the following consent orders on ancillary matters (“Consent Order”): That the Plaintiff and the Defendant shall have joint custody of the 2 children of the marriage, namely B and C ("the children"). The Plaintiff shall have care and control of the children, with liberty to return to the USA with the children in December 2012. The Defendant shall have liberal access to the children as follows: Tuesdays, Thursdays and alternate weekends. One week before the children return to the USA in July 2012. When the children are in the USA, one week during the designated school vacations, with not more than 7 consecutive days for each access period, save for the longer summer vacation where a period of up to 3 weeks may be arranged. All costs associated with access are to be borne by the Defendant. The Defendant shall give the Plaintiff at least 1 month's advance notice of his intended visit and shall give a detailed itinerary and contact details of any trip at least 14 days in advance, including the trip referred to in (ii) above. The children shall remain contactable by phone at all times during access with the Defendant. Unlimited phone, email and Skype access. In the event that the Plaintiff intends to relocate out of New York State, she shall provide the Defendant with at least 6 month's advance notice of her intention. Any notice of less than 6 months shall be subject to agreement between parties. The Defendant shall pay the Plaintiff nominal monthly maintenance of S$1.00 with effect from the date of this Order. The Defendant shall pay the Plaintiff USD$500.00 per child (total USD$1,000.00) as monthly maintenance for the children, with effect from the date of this Order. The Defendant shall contribute 25% of the total value of his salary package, should the calculation result in a higher maintenance payment. This shall be capped at a maximum payment of 50% of the children's total expenses. The Plaintiff shall forward a prospective statement of expenses for the children (including education and special education expenses; and their share of the household expenses) by mid-August of each year and parties shall exchange statements of respective salaries, for parties to calculate their respective contributions for the children. Parties joint matrimonial assets shall be divided in the proportion of 65% - 35% in favour of the Plaintiff. This shall include the Merrill Lynch account, Royal Bank of Canada account, Idex Fund, Wine Investments and joint DBS account. Parties shall retain all other assets in their respective names. Each party shall bear their own costs of the proceedings. Liberty to apply.
On 18 June 2015, pursuant to an application taken out by the Plaintiff in Summons No. xxx/2015 (“SUM xxx”) in respect of maintenance for the children in Clause 3(d) of the Consent Order, the Court passed the following orders: Clause 3(d) of the (Consent Order) respecting the maintenance for the children of the marriage be varied as follows: That the Defendant shall pay the Plaintiff a sum of USD$1,500 as monthly maintenance for both children with effect from July 2015. Each party shall bear their own costs. (“June 2015 Order”)
In Summons No. 622/2019 (“SUM 622”), the Defendant applied for the following orders: That the Plaintiff does, within 1 week of the order made herein, comply with Paragraph 3(e) of the Consent Order as set out in [the IJ] to divide and distribute the joint matrimonial assets, by carrying out the following: Transfer to the Defendant his remaining share of the monies in the Royal Bank of Canada account referred to in Paragraph 3(e) of the Consent Order, by transferring to him the US Dollars equivalent (as at the date of the transfer) of CAD$20,018.33 by way of a cashier’s order made out to the Defendant and sent via courier to [the Defendant], xxx; Transfer to the Defendant his share of the monies in the joint DBS account referred to in Paragraph 3(e) of the Consent Order, by transferring to him the US Dollars equivalent (as at the date of the transfer) of SG$412.66 by way of a cashier’s order made out to the Defendant and sent via courier to [the Defendant], xxx; Transfer to the Defendant his share of the Idex Fund referred to in Paragraph 3(e) of the Consent Order, by duly executing the relevant form (a blank copy of which was sent to the Plaintiff’s lawyers, East Asia Law Corporation, in Tan Rajah & Cheah’s letter of 10 January 2019) with Transamerica to give instructions for the assets in the account to be divided in a 35% - 65% manner, in favour of the Plaintiff; Transfer to the Defendant his share of the assets in Merrill Lynch account referred to in Paragraph 3(e) of the Consent Order, by duly executing the relevant form (a blank copy of which was sent to the Plaintiff’s lawyers, East Asia Law Corporation, in Tan Rajah & Cheah’s letter of 10 January 2019) with Merrill Lynch to give instructions for the assets in the account to be divided in a 35% - 65% manner, in favour of the Plaintiff.
In Summons No. 1686/2019 (“SUM 1686”), the Plaintiff applied for the following orders: Clause 3(d) of the Consent Order under [the IJ] varied by the [June 2015 Order] be varied to read as follows:- That the Defendant shall pay the Plaintiff such lump sum of USD$88,500.00 or other reasonable sum to be assessed by the Honourable Court as the children’s maintenance up to their age of majority; That the maintenance payable by the Defendant in respect of the children’s maintenance as ordered above herein shall be deducted from the Defendant’s share of the matrimonial assets to be ordered pursuant to [SUM 622]; The monies deducted from the Defendant’s share of the matrimonial assets being the children’s maintenance shall be directly paid and/or released to the Plaintiff by the banks/financial institutions holding the parties’ matrimonial assets; Liberty to apply.
I heard both SUM 622 and SUM 1686 together on 11 July 2019.
For SUM 622, by consent, I granted Order in Terms in respect of prayers 1a. to d. as set out at [3] above. I also ordered, by consent, that parties to take steps to effect the division of the Wine Investment in the proportion of 65%-35% in favour of the Plaintiff pursuant to Clause 3(e) of the Consent Order under the IJ. I furthered ordered each party to bear his or her own costs.
For SUM 1686, I passed the following orders: Clause 3(d) of the Consent Order under the [IJ] as varied by the [June 2015 Order] shall be varied as follows: That the Defendant shall pay the Plaintiff a lump sum of US$81,750.00 as maintenance for the children into the Plaintiff’s designated bank account within 1 week after the assets in the Merrill Lynch account referred to in clause 3(e) of [the IJ] has been divided. Each party to bear his or her own costs.
On or about 15 July 2019, the Defendant filed his Notice of Appeal against the whole of my decision in SUM 1686 as set out at [7] above.
Since only the orders in relation to SUM 1686 are the subject of appeal, this judgment will be confined to the reasons for my decision in SUM 1686.
The Plaintiff’s case in SUM 1686
The Plaintiff sought a variation of the current order for monthly payment of children’s maintenance to that of a lump sum payment of USD$88,500.00 to account for the children’s maintenance until they turn 21 years old. In her written submissions, the Plaintiff stated there are two substantive issues in relation to SUM 1686. The first is whether the Plaintiff should be granted lump sum maintenance. The second is whether lump sum maintenance ought to be deducted from the Defendant’s share of matrimonial assets.
The Plaintiff submitted that there is material change in circumstances now that she had relocated to the USA with the children, and that the Defendant had been in contumelious breach of his maintenance obligations since March 2019 after filing SUM 622. She pointed out that at the material time when the Consent Order was entered into, it was not disputed that she and the children were still living in Singapore.
The Plaintiff submitted that now that parties are both no longer in Singapore, there is a material change in circumstances in that it will be difficult, if not impossible for the Plaintiff to enforce the existing period maintenance orders against the Defendant. The Plaintiff asserted that this puts her and the children in an extremely precarious position, especially as the Defendant had already taken it upon himself to “suspend” maintenance payment, and she submitted that defaults in payment are likely to continue in the future.
The Plaintiff highlighted that since March 2019, the Defendant had been in breach of the existing maintenance orders even though he was not facing any precarious financial predicament, and that as at July 2019, the Defendant is in arrears of USD$7,500.00.
The Plaintiff submitted that given the Defendant’s flippant attitude towards his maintenance obligation even though he clearly has the financial means to meet these obligations, he does not intend to fulfil his maintenance obligations. As such, the Plaintiff will likely need to enforce the periodic maintenance orders against the Defendant in years to come, and it will be very impractical, costly and difficult for her to do so in Singapore.
For the above reasons, the Plaintiff submitted that it is reasonable and in the best interests of the children for the existing period maintenance orders to be varied into a lump sum maintenance order. A clean break is desirable to enable parties to move on with their lives and to...
